ABA Journal

Legal Theory

Lessons for liberals can be found in story of Federalist Society influence, says book review

By Debra Cassens Weiss

May 15, 2013, 11:25 am CDT

Whoever wrote this must live in an alternate universe where the courts are conservative.

By B. McLeod on 2013 05 15, 12:21 pm CDT

The only lesson to be learned from the Federalist Society is how to dress up political opinion as law and cherry-pick historical snippets to support it while ignoring all evidence to the contrary.

As human beings, we are very good at that.

And sadly, this book may have a very depressing point, if that kind of intellectual dishonesty and hypocrisy is what it takes to achieve power.

By Anonymous on 2013 05 15, 1:04 pm CDT

The authors use incorrect grammar even in their title - which would properly read, The Federalist Society: How Conservatives Took Back the Law From Liberals.

By Walt on 2013 05 15, 1:21 pm CDT

Gag.

By isolde on 2013 05 15, 1:48 pm CDT

Nausea is an odd reaction to correct grammar - especially regarding the published word.

By Walt on 2013 05 15, 3:25 pm CDT

As a long time member of the Federalist Society, who has attended numerous conferences and symposiums sponsored by this group over the years, it seems to me that liberals have nothing to fear from the Federalist Society. Indeed, the negative reactions of liberals to the Federalist Society is something I have always found surprising.

After all, the Federalist Society is all about scholarly dialogue and open discussion. They routinely have panel discussions where all sides of a particular issue is discussed. The Federalist Society has filled a void that the law schools themselves have created.

By Yankee on 2013 05 15, 4:07 pm CDT

A lesson for liberals can be found in any book - You need a spine!

By NoleLaw on 2013 05 15, 4:14 pm CDT

And does anyone find it ironic that the Federalist Society, a band of purported champions of originalism, would be better labeled as the Anti-Federalist Society if they used the original meaning of those political labels?

By NoleLaw on 2013 05 15, 4:16 pm CDT

Unfortunately, liberals cannot be taught.

By Marc on 2013 05 15, 5:09 pm CDT

Thanks for contributing to the conversation in an intelligent manner, Marc. We all so look forward to seeing your critical thinking powers and discerning intellect at work. Clearly, your cunning quip demonstrates the righteousness of your cause, the superiority of your mind, and the brazen ignorance of all who disagree with your opinions. If they were smart, the liberals would be humbled by your display of analytical rigor. But since, as you point out, they cannot be taught, they will probably never truly grasp how you've put them in their places. Foolishly, they will see your comment and only picture a six year old bully kicking over another child's sandcastle and running away with his ego inflated. Their loss, eh?

By Anonymous on 2013 05 15, 5:17 pm CDT

#9 -- When my more even-handed, intellectually honest conservative friends wonder why so many of their persuasions are routinely and frequently unfairly stigmatized as narrow-minded jerks, I usually link them to #9's posts for supporting evidence.

By AndytheLawyer on 2013 05 15, 5:20 pm CDT

Liberals already have a common interpretation of the Constitution -- it means whatever the political winds tell them it means at any given time.

By bran on 2013 05 15, 5:50 pm CDT

#12 -- Whereas conservatives' common interpretation is derived from whatever Rush Limbaugh said last week.

By AndytheLawyer on 2013 05 15, 5:55 pm CDT

Comment removed by moderator.

By Doodle Dandy on 2013 05 16, 8:37 am CDT

Before we start teaching liberals a lesson about the Federalist society, perhaps it would be prudent to teach them a lesson about the Constitution. In particular, a lesson on the 1st, 2nd, 9th, and 10th Amendments.

By Jason Van Dyke on 2013 05 16, 9:11 pm CDT

I hope you mean how to ignore the first one and how to misconstrue our entire federal system with regard to the latter two.

With regard to the second, I agree.

Funny thing about the Constitution -- no one likes all of it. Maybe you can teach one side about the Second Amendment, and they can help you with the First and the Fourteenth?

By Anonymous on 2013 05 16, 9:13 pm CDT

@16 In addition to the Second Amendment, the political left needs some "help" with the First, Fifth and Fourteenth Amendments as well. Their results oriented jurisprudence lends them to purposefully ignore the language and history of individual amendments.

By Yankee on 2013 05 16, 10:13 pm CDT

@15 - I'm always open to learning. Does the Federalist Society support the incorporation doctrine with respect to say, the 2nd amendment, or do they believe that the McDonald decision usurps the states' sovereignty to regulate a matter they traditionally had plenary power to regulate?

By NoleLaw on 2013 05 16, 11:12 pm CDT

If truth in advertising laws applied to political organizations, the so-called Federalist Society would be called the Anti-Federalist Society. The Federalist Party led by Washington, Adams and Hamilton believed in a strong national government as a guarantor of liberty from the actions of individual states as did the Republican Party of Lincoln and Theodore Roosevelt. The “Federalist Society” adopts the view of Jefferson Davis that it is the states rather than the people who are supreme and that the states can run rough shod over their citizens and that we are nothing more than a collecton of petty states.
The Federalist Society represents the political remnant of the Confederate States of America and seeks nothing less than the ultimate destruction of the United States of America as we know it.

By Doodle Dandy on 2013 05 17, 1:03 am CDT

Doodle, I know - decentralization of power is sooooo scary.

By Outsider on 2013 05 17, 11:02 am CDT

Doodle Dandy @19: Your post is false propaganda. No, the Federalist Society does not advocate the views of Jefferson Davis and the Confederacy. While Washington, Adams and Hamilton believed in a strong national government relative to the Jeffersonian Republican-Democrats, what Washington, Adams and Hamilton believed very much included a strong belief in limited government as reflected in the U.S. Constitution. While Lincoln and T. Roosevelt believed in the national government taking action to protect individual liberty, neither embraced nor would embrace today's welfare-administrative state.

By Phil Byler on 2013 05 17, 11:28 am CDT

Yankee, the negative reactions to the Federalist Society are not surprising at all. Too many people, on either side of the aisle, find scholarly dialogue and open discussion to be anathema, and will instantly discount any dialogue that challenges their preconceptions.

Witness #2 (who later decries the same tendencies from the opposite side in #9) &16;, #9, #13, and #19.

By Ohio Lawyer on 2013 05 17, 1:31 pm CDT

I did so hope that the level of dialog on this site, presumably among mostly lawyers, would be bit more thoughtful and respectful. We as a nation are fairly moderate. Generally we favor free enterprise with sufficient safeguards to prevent abuses (e.g., workplace hazards, unsafe food, environmental destruction), government provision of essential services (e.g., roads, police), reasonable opportunities for everyone to succeed (e.g., good schools, laws against arbitrary discrimination), and a safety net for those in need (e.g., the disabled, the elderly). Liberals and conservatives differ on exactly how broad these categories should be and the means to achieve these goals, but, as someone once said, the political battles are generally fought between the 40-yard lines. We have done best historically when liberals and conservatives have not viewed each other as the enemy but rather brought all the ideas to the table to hammer out compromises. By definition, a compromise is no one's ideal solution, but as it stands now, nothing of any importance is getting done because those on the left and right seem to prefer sniping at each other. My modest proposal is that this site be devoted to respectful dialog instead.

By IndyCanary on 2013 05 17, 1:32 pm CDT

Before entering confined spaces we test the atmosphere. This argument is toxic and mostly conducted with no overview. The Second Amendment protects us against an armed government, not government regulation. Which of you is really concerned with troops in the street? Its original intention is obsolete. Those of us who truly love the Constitution want it to remain relevant, which means an occasional joint replacement when it's limping. It is brilliantly conceived but time-constrained and we should consider its quality of life. Federalists, anti-federalists? Read the papers, which even today reflect a level of thought not approached by the previous comments or, for that matter, this one. Its become just like Court: a bunch of obviously bright lawyers calling each other idiots. Be persuasive.

By Neil on 2013 05 17, 1:41 pm CDT

Actually, there is a grain of truth in what #9 says. During my life, it has become increasingly apparent to me that politics - the study of the relationship between the individual and his higher authority - consists of the most deeply held, purhaps instinctual beliefs. They form a grid through which the remainder of our knowledge flows. It is nearly impossible to dismiss these instincts in nearly anyone. I am ultra-conservative, and the truth is, I cannot be taught.

By Justpassingby on 2013 05 17, 1:42 pm CDT

Sorry IndyCanary I typed before I saw your comment

By Neil on 2013 05 17, 1:43 pm CDT

To be fair, I've given them a fair shake before and was, unfortunately, greeted with complete and utter misunderstanding of the fundamental history of the Constitution, and not even in grey areas where reasonable people can disagree.

Still, I thank you for pointing out that I reacted too strongly. I can only offer that my reaction is coloured by the members of the Society that I have had the displeasure of trying to communicate with before. That is, of course, no excuse. I recognize the serious flaw in painting them all with the same brush, and I thank you for bringing that to my attention.

My experience has been that neither side wants to give full effect to each of the Constitution's promises of liberty, and that each side's refusal is based mostly in political opinion supported by poor scholarship.

By Anonymous on 2013 05 17, 2:05 pm CDT

IndyCanary (and a bit of Neil): Your comments provide welcome relief from the endlessly-repeated stridencies of most of the usual suspects above. The right- and left-wing nuts have amazing energy and tenaciously repeat, week after week after week, their same sad songs and dances -- how they have time to make a dime practicing law is a mystery to me.
I had lamented earlier in another of this week's debates of the incapacities of the logic tight compartmentalized thinking of the participants which reduces compromise to a joke and where political correctness seems to rule. I feel much better knowing that I am not alone.

By porkut on 2013 05 17, 2:29 pm CDT

One has to wonder whether Anonymous #10 is the same as Anonymous #2, since it was the former who immediately launched into attack mode. I suppose it is possible, since the latter has nothing critical to say of the former.

And as the founder of a chapter of the Society (at Emory, in 1987), I find Doodle Dandy's comment (#19) entertaining, as is the response of the far Left to the Society in general. The Federalist Society is, and always has been, a debating society, where all sides are aired. One merely has to attend a single program to learn that, lending credit to the conclusion expressed in #9. That so many on the far Left mischaracterize a forum for robust and reasoned debate as such reveals much about their confidence in the ability of their ideas to survive in the marketplace of ideas.

By W. James Young on 2013 05 17, 3:14 pm CDT

I agree with Justpassingby @ 25 and was going to say the same thing. I actually think Marc @ 9 is largely right ... but looking at only half the equation. "Extreme" liberals AND "extreme" conservatives BOTH largely "cannot be taught." Because they have their agendas, they have their very firm world views, and far too few humans in general will let facts get in the way of their opinions. For some reason, it seems to be very threatening to many people even to hear a viewpoint different than their own. The balkanization of the media hasn't helped either, because people can be "informed" about events without ever having to confront something with which they disagree, if they want to. The Fox News bashers always drive me nuts, because what are they saying, that not a single channel should be allowed to exist that expresses a conservative viewpoint? No, that's not the answer at all. But the people who watch ONLY Fox News tend to drive me nuts even more, because they often don't even realize that the channel is putting the same amount of "spin" on everything that they purport to detest in the mainstream or left-wing media, just in the opposite direction. They don't know what they don't know.

Not to be too pessimistic, however, I think there are still some people who will listen to reasoned arguments and allow themselves to be persuaded, even if only gradually and over time. I know my own views have shifted somewhat over time. I think what the extremists on any side need to remember, though, is that you won't win over anyone by shouting them down or hurling insults.

By Just Some Bloke on 2013 05 17, 3:16 pm CDT

@29 - I have never seen the Society or its members do more than take up positions as required by their personal political leanings. No matter how robust the debate might be, at the end of the day, the chips seem to fall predictably, and I think you'll at least understand how that could make us skeptical. But as a gesture of good faith, I will give it another chance.

I sincerely hope that you are correct and that I find that it was only the chapter with which I was familiar that was such an obvious mouthpiece for one political side.

For my part, I am weary of explaining to members of the Society why the Tenth Amendment is simply a truism.

By Anonymous on 2013 05 17, 3:23 pm CDT

@ 23 - Well said. Although I do have a more jaded view of the intellectual capabilities of lawyers in general - not necessarily smarter nor more discerning than any other segment of the population - I would certainly love to see more thoughtful attempts at reaching consensus and compromise. Knee-jerk reactionary positions help no one and hinder solution and progress. While I have certainly been guilty of spitting out devil's advocate reactionary statements in response to offensive diatribes myself, I'd still like to see more of a spirit of simple respect for others' positions without the ugliness, name-calling and arrogant narcissism that sometimes turns up on these pages. Respectful dialog indeed! Ah, to dare to dream...

By The Evolution is Coming on 2013 05 17, 4:05 pm CDT

@30 I tend to agree that neither end of the political spectrum can be taught, but I suspect that has always been the case. It seems to me that our political history also suggests that did not prevent those on opposite ends of the political spectrum from compromising somewhere in the middle to get legislation passed. I am not much of a historian. Is the policitical stalemate that has seemed to exist in Washington for so long a new phenomenon? If so what is the reason for it? I have heard a lot of theories, but so far no good solutions as to how to correct the problem. And it is a problem. @1 No parallel universe in Michigan (a so-called blue state) - a very conservative Supreme Court - maybe the most conservative in the US. And most of the Ct. of Appeals judges are conservative. The same is true of the Michigan Federal Courts and the 6th Circuit. Of course there are exceptions but by and large in this state conservative judges are the norm.

By redwood on 2013 05 17, 4:15 pm CDT

What an incredibly self-serving vanity to dismiss those whom you cannot persuade as those who "cannot be taught."

By W. James Young on 2013 05 17, 4:18 pm CDT

None of the Framers were even licensed to practice law. I do not believe the assortment of merchants, slavers, farmers, and businessmen had magical powers enabling them to craft a perfect document. Writing the original Constitution as anything intended to be legally binding today would be malpractice-- it is woefully incomplete and contains no definitions of so many essential terms.

The Federalist Society, and virtually everyone else who make sweeping statements about the original intent, seem to always forget that the original intent of Jefferson and some others advocated constitutional conventions every 20 years or so to rewrite/revise/improve the USCON. But since everyone has their favorites among the "best guess/most practical for the day" interpretations pronounced from SCOTUS, I think they are scared of what the results would actually be-- clarity would defeat their grounds to complain about "states' rights being unlawfully diminished" and "liberal judges wrongfully demanding that every citizen gets equal protection under the constitution."

By Voice of Reason on 2013 05 17, 5:19 pm CDT

This is the thing. I spent 10 years in Washington DC. The conservatives and Republicans meet everybody they know in town at Federalist Society gatherings, make political contacts, and get political appointments. Meet and get clients. So somebody came up with a "progressive" alternative: The American Constitution Society for Law and Policy. I went running to their meetings in DC but they were full of career civil servants. You could network in that place until the cows come home and never get a job or a client out of it. It is too bad the concept is fabulous for all political persuasions.

By Gregg Furman on 2013 05 17, 5:41 pm CDT

@34 If you were responding to me I think that you missed the point- perhaps because it was poorly phrased to begin with. My point was that those at both ends of the political spectrum do not listen to those with different viewpoints (and they can't be taught if they don't listen) because they are so convinced of the correctness of their position. It also make compromise extremely difficult because it forces one to violate deeply felt principles. I am not naive enough to believe this to be the case with many politicians. They cannot compromise because the people that elected them - those that won't listen - won't re-elect them.

By redwood on 2013 05 17, 5:47 pm CDT

I don't know, "Redwood," that I missed your point, since you seem to reiterate it. It is neither "not listening" nor "not teachable" to disagree with another viewpoint, or to not waste one's time listening to the same old, same old, when one understands the speaker's point all too well. Some are too quick to be dismissive of differing viewpoints, and nearly as quick to assume that their can be compromise between competing visions fundamentally at odds with one another. But I am sick to death of having what I believe to be my well thought-out positions dismissed, and I try very hard to avoid being dismissive (i.e., respectful) of political opinions with which I disagree. And I am respectful enough of politicians to believe that they are not so craven as you suggest.

By W. James Young on 2013 05 17, 6:19 pm CDT

Re: (33) Redwood's comment "Is the policitical stalemate that has seemed to exist in Washington for so long a new phenomenon? If so what is the reason for it?" The "reason" is that President Obama is Black. Only half Black and he himself is consistently statesman-like about the reaction from his opponents, but that IS the reason - it shakes the confidence of those who believe they (should) own the world and everyone else should do their bidding. Remember the same kind of Congressional and public behavior during President Clinton's term (who was called "our first Black President")? So sad.

By NAY on 2013 05 17, 6:47 pm CDT

Please don't play the race card so frivolously. You kind of make even those who agree with you shudder then. >.>

By Anonymous on 2013 05 17, 6:52 pm CDT

WJY - maybe I missed your point. I have never been to a Federalist Society meeting and I cannot quarrel with your experience. Based on what I have read about those who belong to it they seem to be known for their conservative views. So I always imagined that it was made up of exclusively of conservative thinkers. I also found the name confusing as other posts have. My original post was more of a question. I think that we have always had a mix of citizens with strongly held views on the left and on the right, but from my perspective, those views were not so polarized as to foreclose any possibility of compromise. My question was why has that happened now? As someone from the political middle it appears to me that the far right has gone farther to the right and seems to be less willing to compromise. I do not believe the far left could go any farther to the left without advocating socialism or communism which hasn't worked anywhere. But the left does seem to be more willing to compromise. My other question was what can be done about the inability to compromise? It seems to me both parties are just hoping that some day they will have all three branches of government and then they can work their will. I don't believe that will happen in my lifetime (although, while I used to think of that as a long time I am afraid I no longer do). In the meantime the country is left twisting in the wind. I am glad you have so much faith in our polititicians, but I see little evidence that they deserve it.

By redwood on 2013 05 17, 7:09 pm CDT

@41 - Very well-said. That's sort of where I feel. I don't consider myself very far to the left on most issues, but people on the far right would see me as left, relative to their position.

We should fear either side ever getting control of all three branches.

By Anonymous on 2013 05 17, 7:31 pm CDT

The political left has never been willing to compromise.

By Yankee on 2013 05 17, 7:36 pm CDT

@ 43 Yankee - Bulls**t. The absurdity of your statement only serves to reiterate to the reader how very uninformed and intentionally ignorant you must be.

By Antithesis on 2013 05 17, 9:04 pm CDT

@44 - That commenter is a troll. Several of us "regulars" have made a pact not to respond to it. I invite you to join in said pact. When you stop rewarding it with attention for those types of posts, it may, in fact, stop. Or at least find it less fulfilling to lay down a false statement and run away giggling to see who bites at the trolling attempt.

By Anonymous on 2013 05 17, 9:12 pm CDT

#43 -- well, that's untrue. Example = Obamacare itself, which is a massive compromise between (1) the more-desired single-payer socialized medical care that everyone in Congress (tea partiers included) enjoy (as do the citizens of the Earth's 21 other first world nations), and (2) the predatory, unfettered, for-profit health insurance industry as it existed before Obamacare was enacted.

By AndytheLawyer on 2013 05 17, 9:20 pm CDT

The left and the right both need to learn that life for everyone will never be uniformly fair. Primarily because we cannot pick our parents. The only things that all people will experience with some equality is birth and death. So, instead of engaging in flame wars and mental masterbation on the ABA Board, can't we just agree to disagree. Life is hard enough without wasting time convincing someone that your lightning in a bottle is somehow better than their vapor in a bottle. Philosophy is not a science. There are no right answers.

By PeteMoss on 2013 05 17, 9:23 pm CDT

I am thinking that, given how incredibly much more liberal and anti xenophobic our world has become over the past thirty years, the federalist society blokes are the last desperate efforts to stop progress. Everyone must have forgotten what the early 1980s were like. Women attorneys were expected to quit when they got pregnant. The concept of same sex marriage did not exist. Liberal courts were forcing equal rights...now conservative courts are enforcing those same civil rights (with a bit less vigor), while newer unconceiveable ideas in the 80s are gaining support. Our entire society has migrated to the left so far that we have forgotten how conservative conservatives were.

By Jack on 2013 05 17, 10:15 pm CDT

@21 Phil Byler

Quite to the contrary, phil. It is your post that is clearly false propaganda or, at the very least, a distorted view by one who views such things through the looking glass of right fringe personal political beliefs.

By Doodle Dandy on 2013 05 17, 11:40 pm CDT

Doodle Dandy @49: Excuse me, but you made some statements about the Federalist Society that were just false, and I explained why. The Federalist Society is not a proponent of Jefferson Davis and the Confederacy; that statment in fact is ridiculous. Washington, Adams and Hamilton were in favor of a stronger national government than the Jeffersonians, but that was relative and did not alter their commitment to limited government. Lincoln and T. Roosevelt were in favor of the national government protecting individual liberty, but they would not have supported today's welfare-administrative state.

Your comeback is only that I am the one saying falsehoods. But you have no explanation as to how I am wrong. You have no real come back.

By Phil Byler on 2013 05 18, 2:41 am CDT

It was always strange to me that I was able to get though law school without ever being expected to read the US Constitution or Declaration of Independence.
Our Constitutional Law course was only very selected snippets with a very transparent liberal agenda and there were no state constitution or municipal law courses offered.

By Me on 2013 05 18, 1:25 pm CDT

I would be interested in hearing what the members of the Federalist Society had to say about the Gerrymandering that has given the Republicans a thirty seat majority in the house. Please do not respond that it is bilateral; it is not. I am aware that a statistical standard deviation could allow a Republican majority but the current packing in Michigan, Ohio, Pennsyvania, etc would be the statistical equivalent of winning Powerball. Do we celebrate it when our side wins by cheating?

By Neil on 2013 05 18, 2:15 pm CDT

@Neil - and Michigan Rs hope to take that concept to another level by dividing its electoral votes according to Congressional district. It is sad because it seems to suggest that the people who run the GOP in Michigan know that they cannot win with their current message so their only hope is to rig the system. And it is working.

By Redwood on 2013 05 18, 2:35 pm CDT

So in the end, how different is the evil that the second amendment was to protect us against, than the one being accomplished by the Gerrymandering. SCOTUS says it knows that it is wrong, but there is no justiciable standard. The American people are dealing with a Congress that is not legitimate. Why isn't that a coup.

By Neil on 2013 05 18, 3:49 pm CDT

@50 Phil Byler

You set forth your conclusory position bereft of any evidentiary support and therefore none is needed to counter it. You have no real "case". You have your opinion. The simple fact of that matter is that Washington, Adams and Hamilton had no committment to "limited government" as you subscribe to it. That is simply a conservative meme that has no basis in reality. The Articles of Confederation represented that limited government and it was a dismal failure. Washington, Adams and Hamilton fought for a strong central government period and there are plenty of court cases from the early, post-Articles years of this country that back that up. The Republican Party of Lincoln and Theodore Roosevelt bears no resemblance to the GOP of today. Theodore Roosevelt was a progressivist who believed, in particular, in strong government regulation, environmental issues, and equal opportunity...that ain't today's GOP.

By Doodle Dandy on 2013 05 18, 3:56 pm CDT

Doodle Dandy @50: Excuse me, but you accused the Federalist Society of supporting Jefferson Davis and the Confederacy. You cited no evidence supporting that false proposition. I called you on that false statement, and I further pointed out how your historical references were also wrong. To say now that I have no evidence for what I say is just your way of avoiding the fact you made a false statement about the Federalist Society and have no evidence to indicate that it is aligned with Jefferson Davis and the Confederacy.

Washington, Adams and Hamilton most certainly did have a commitment to limited government. The Articles of Confederation did fail, but the replacement of the U.S. Constitution was still limited government, a totally different world than today's socialists. Washington was the Chair of the Constitutional Convention, Hamilton a delegate and Adams a supporter. Their belief in a stronger national government was relative to the Jeffersonians and expresed in the U.S. Constitution.

You say that the Republican Party of Lincoln and T. Roosevelt bears no resembalnce to day's GOP, but you cite nothing in support. I write this as a Republican Party Committeeman: you are very, very wrong. The Party of Lincoln and T. Roosevelt was the party of freedom. It stil is. We oppose the slavery of socialism and support a strong military.

By Phil Byler on 2013 05 18, 4:15 pm CDT

Mr. Byler-
My friends who are FS members would likewise be appalled at the suggestion that they supported Jefferson Davis, but your immediate ascription to your opponents as socialists is interesting in two ways. The early American towns were, in fact, more socialist that you are intuiting and we have some different and new issues that were not necessarily forseen by the founders.

George Nakashima was a famous woodworking artisan who died recently, and I was reading an article on fixing a broken leg on one of his chairs. The restorer was faced with a fix that would allow the chair to be exhibited iin a glass case if no new material was added to the leg or a repair that required some new material but would allow the chair to be sat in. The restorer guessed that Mr. Nakashima would have preferred the latter and proceeded on that basis. The Constitution was not intened to be showcased as some fragile remnant and, perhaps, it is for that reason that the method of changing the document was embedded in the Constitution itself.

We honor the founding fathers when we understand and appreciate their foresight, but we cheapen that memory when we credit them with clairvoyance. The real question is not what Washington and Lincoln were but what they would be now.

By Neil on 2013 05 18, 6:27 pm CDT

Neil @57; While I appreciate that you understand the Federalist Society is certainly not an organization yearning for the lost Confederacy, you need to face up to the fact that today's liberal Democrat is a socialist of a certain stripe and you need to greatly supplement your understanding of history.

There were Colonial American towns in the 17th century that can be called religious-communitarian. There are a number of books that trace the thinking and development of such towns as they became part of 18th century America. However, those towns and other towns in colonial America cannot rightly be called socialistic as that term is used today. If you explained 20th century and 21st century socialism to the colonialists who lived in Colonial America, including those in religious-communitarian towns, they would recoil in horror at the atheism, the libertine personal behavior and the centralization of political authority.

The 18th century saw the rise in America of a political philosophy of liberty that Bernard Bailyn describes in "The Ideology of the American Revolution." Liberty was conceived in terms of freedom from government. The U.S. Constitution was intended to be a charter of liberty because it restrained Government with its checks and balances and its division of authority between the national and state governments. The objections of the anti-Fedealists led to the adoption of the Bill of Rights.

The 19th century saw the rise of American democracy described by de Tocqueville. That American democracy worked because there was a decentralization of political authority, with the churches, the family, the local volunteer oragnizations and the local governments providing the necesary supports for that form of democracy.

Washington and Lincoln were both very much believers in the American form of government under the U.S. Constitution, and both were or became deeply religious men. Washington was the first President to order Thanksgiving, he expressed a belief in an active God in history, and he believed that religion was a necessary support for the morality that sustained a free people (see Farewell Address). Lincoln, unlike in his early years, became devout while President; he ordered Thanksgiving during the Civil War (read his Thanksgivng Proclamations); his Second Inaugural Address is not only a state paper but a sermon on God's justice for the sin of slavery (read it).

The notion that Washington and Lincoln would approve of modern socialism and would be liberal Democrats today is utterly laughable. Washington was a military man, a businsman farmer and a real estate owner who regularly attended Church and was a believer in the glorious experiment of America. Lincoln was a Republican Party lawyer who believed that the U.S. Constitution needed to be formally amended to abolish slavery, who believed in the sovereignty of the People and who believed in economic and political freedom, economic growth and technological invention (the only President to own a patent and looking for technological advantages as Commander in Chief). Republicans, both Washington and Lincoln would be; and aghast at today's liberal Democrat, they both would be.

By Phil Byler on 2013 05 19, 1:07 am CDT

Phil, I think that is absolutely false and biased. Anyone can cherry pick from history and ignore all contradictory evidence to support a point.

You lose a tremendous amount of credibility when you assert that Democrats are really "socialist" just because you disagree with them. No objectively reasonable discussion begins with something that is so inaccurate.

We have always been "socialist" in the sense that we pool our resources to care for the less fortunate and weak. We are not, and no major political group is advocating that we become, "socialist" in the pejorative sense that you use the word. No reasonable, educated person can make that claim.

By Anonymous on 2013 05 19, 1:20 am CDT

Anonymous @ 59: Your statement that my post at 58 is "false and biased" and that I have cherry picked from history" is what is false -- utterly false. You obvoiously don't know history; and when told it, you can't handle the truth. My review of history punctures your illusions and superficial understandings.

No.I don't lose any credibility at all in describing today's liberal Democrat as a socialist of a certain stripe. You are mistaken: I am not using that word as a pejorative term, but as a descriptive one. If you are going to try to deny that accurate description, no objectively reasonable discussion is possible because of your failure to deal with what is a political analysis.

"Pooling resources" is not a description of socialism. Churches and volunteer organizations in America have done and continue to do that all the time in a free society. What socialism entails, among other things, is using central state power to tax and redistribute wealth and using various means of political authority to control the society and plan the economy. While government ownership of the means of production and of the media is one way to effect that social control, it is not the only way. Use of taxing and regulatory authority can be so pervasive that social control is effected along side ostensible private ownership. That is where today's liberal Democrat is.

By Phil Byler on 2013 05 19, 1:43 am CDT

I don't think any of that is true. Maybe we should just leave it at that.

I think you are distorting history and reasoning teleologically to reach a politically desired conclusion.

We have to be suspicious *anytime* someone decides that the "Founders" would hate what a political party is doing, just because the person giving the opinion also disagrees with that agenda.

The fact is, pooling resources IS socialism. Socialism has degrees. Liberal democrats are not advocating for what you say they are. That is factually inaccurate. It is a strawman, and I will not engage it further. Hyperbole is just not useful here.

Yes, you do lose credibility by resorting to Fox News talking points that are patently false.

If you want to engage with this discussion intellectually, then recognize the truth. We have to be realistic and intellectually honest with each other. If you aren't willing to be... why bother? You're being melodramatic and hyperbolic. You aren't engaging in critical analysis.

By Anonymous on 2013 05 19, 1:53 am CDT

@61

Well said.

By Doodle Dandy on 2013 05 19, 2:03 am CDT

Anonymous @61 and Doodle Dandy @ 62: Neither of you have a clue, do you? Both of you are ignorant of history. Both of you are ignorant about political and economic theory. Both of you are not being intellectual at all. Both of you are not engaging in any critical analysis. Both of you just believe what you want to believe. Both of you are being melodramatic and hyperbolic because you don't have the knowledge and the experience in the world to enable you to be truly intellectual and truly engage in critical analysis. Both of you reflect the failure of the American educational system.

By Phil Byler on 2013 05 19, 2:14 am CDT

That's funny, because we think the same about you. We think you're the one that's ignoring history and fact. So maybe we should just end it there.

By Anonymous on 2013 05 19, 2:19 am CDT

Anonymous @64: Getting the last word in does not save you from what I stated in post 61 being right on target.

By Phil Byler on 2013 05 19, 2:27 am CDT

Anonymous @64: Correction, it is getting the last word in does not save you from what I stated in post 63 being right on target. Your post 61 was ridiculous.

By Phil Byler on 2013 05 19, 2:30 am CDT

A) Making another post to criticize someone else for wanting the last word made me laugh seriously hard. Did you not think about that?

B) May we please end this peaceably now? There is clearly no resolution here, since we both think the other is being absurd. I'm not going to be responding again. I wish you the best, sincerely.

By Anonymous on 2013 05 19, 2:38 am CDT

Anyone attempting to support a political viewpoint by telling us a historical paragon would have agreed or disagreed is fantasizing. And really who cares. I suggest that most of our fellow citizens and most lawyers developed the rudiments of a political philosophy as undergrads or from their parents. In Con Law we learned and started to think about how to interpret the Constitution. If you were a conservative you were likely to use original intent. If you were a liberal the Constitution must be seen as a living document. In other words one's political philosophy determines how they interpret the Constitution not vice versa. The 2d Amendment is an example. If you are an avid gun rights person you see the 2nd Amendment as intended to be an obstacle to an over-reaching government. If you support restrictions on firearms then you see the 2d Amendment as intended to facilitate a standing militia. Trying to divine how the framers would have applied the language they used to a world they could have hardly imagined would seem pointless and irrelevant to an apolitical non-lawyer. Most every SC case with political implications can be predicted based on the respective political philosophies of the voting justices (yes I know there are occasional exceptions). So these posts are all about politics and the legal argument is nothing more than an attempt to justify a political point of view.

By Redwood on 2013 05 19, 4:31 am CDT

Redwood @68: Instead of pontification, try reading Scalia's book on interpretation in order to understand what is at stake. The "American experiment" in self-government and popular sovereignty is predicated on wriiten Constitutions and words having discernible meaning concerning the fundamental rules of the political order. To say that it is all politics effectively destroys that experiment in self-governemnt. To say that it is poiintless to consider what the Founders envisioned because we live in a vastly different world is an untrue rationalization. The principles of limited government by checks and balances, a federal structure of government and a bill of rights are as applicable today as they were in the 1790's. Those principles, however, do not allow for a modern socialistic state; and there is probably the rub.

Anonymous @67: What I wish is for you to get a real education -- sincerely.

By Phil Byler on 2013 05 19, 10:15 am CDT

@PB citing a supposed authoritative source by a political hack does nothing to support your position. We can all read. It is results that count. And for the most part the decisions of the SC that have political implications are very predictable. If you are paying any attention to what is now happening in Washington you know that the "American experiment" is a failure. We are hamstrung by people like yourself who are so enamored of the past you cannot recognize that what worked then will not necessarily work in the future. Coservatism does not mean stuck in th 1700s.

By Redwood on 2013 05 19, 12:56 pm CDT

Nothing further on gerrymandering?

By Neil on 2013 05 19, 1:43 pm CDT

The United States seems to be trending to "socialist." It did not always have a massive welfare system, a massive bureaucracy to cause urban blight, or a massive bureaucracy to mismanage education. Spending levels have reached a point well beyond unsustainable, and the federal answer to every problem seems to be creating a new massive bureaucracy or launching another war.

By B. McLeod on 2013 05 19, 2:41 pm CDT

Phil, you don't gain credibility by insulting peoples' educations simply because they disagree with you. You need to think about your behavior.

By Anonymous on 2013 05 19, 4:23 pm CDT

People here keep tossing about the word "socialist". I do not think the word means what they think it means. The World Bank estimates that in 2008-2012, general government spending in the U.S. accounted for 17% of GDP. That is not towards the high end of the distribution, especially for developed economies. During the 2012 election, there even was a debate in the British press about whether Obama would classify as a Tory; many of his positions are center-right in the grand scheme of things. Kudos however to the extreme right media that has used that term hysterically since 2008 and brought it into the discussion as a smear. Unfortunately that term does not help dialogue and compromise between the parties.

@71 - You are spot on; gerrymandering is a scourge at the national level, and on the state level as well. In my state for example, Republicans dominate the legislature almost 2 to 1 in spite of the state being split nearly 50/50, as demonstrated by polls and statewide elections. Such domination by one party diminishes debate and encourages extreme political positions (as primaries are often the only elections that count). Picture this: most seats in the Florida legislature are not decided by a competitive general election. That is sickening.

By NoleLaw on 2013 05 19, 4:40 pm CDT

I should add that the 17% figure above is essentially identical to what it was in the 80s; not only are we nowhere close to being "socialist", there is no trend towards "socialism". But hey, why allow empirics to get in the way of colorful phrases.

By NoleLaw on 2013 05 19, 4:53 pm CDT

Nol Law @74 & 75: I defined what I meant by sociaist in my post @ 60, and I meant what I wrote. It is not a a matter of being colorful; it is a matter of being accurately descriptive politically. Also, the World Bank figure is low, it includes a GW Bush year and it does not include any year of ObamaCare. In any event, the World Bank figure does not relate to how political authority is exercised. You might want to check out the facts concerning what is a scandal about the misuse of the IRS.

By Phil Byler on 2013 05 19, 5:24 pm CDT

@76

Have some cheese with your whine.

"I write this as a Republican Party Committeeman:"

One gets the impression you write more as the GOP's Minister of Propaganda, Phil.

It's partisanship such as yours that has divided this country more and more over the last two decades.

By Doodle Dandy on 2013 05 19, 5:32 pm CDT

Anonymous @ 73: Excuse me, but my behavior is just fine. Examine the posts I made (@ 56, 58 and 60); I know what I am talking about. Then contrast those in opposition, and they are bereft of substance and really are nothing more than posturing to avoid substantive argument. That is what is truly troubling.

There is a problem in this country of a failing education system. I am not really picking on you. History is not being taught. There is not an understanding of political and economic theory that educated people should have. I am an older lawyer, and I find too many younger lawyers do not have analytical skills they should have, but they have plenty of ill formed left wing political opinions.

By Phil Byler on 2013 05 19, 5:39 pm CDT

Redwood @ 70: So you think that Justice Scalia is a political hack? And that is your answer? Anonymous is wondering why I am losing patience with you people. He should not wonder.

By Phil Byler on 2013 05 19, 6:02 pm CDT

Here's the part you seem to be missing. We are equally well-educated (if not better-educated) than you, and many of us think that you are wrong -- or at least drawing biased inferences based on historically accurate facts.

I don't blame you for losing patience. We seem to stubbornly refuse to admit that we are all wrong and that your knowledge is superior. You probably shouldn't expect that to change.

You see lack of substance, but we see someone who intentionally avoids seeing it and routinely attacks others rather than admitting that maybe there are multiple interpretations or different points of view that are equally valid.

Anyway, this isn't getting anywhere. I'm not going to be responding further. I think you need to do some self-examination about how you interact with others and how you might do so without attacking them for the crime of disagreeing with you.

By Anonymous on 2013 05 19, 6:45 pm CDT

@PB - I too am an older lawyer - 67 VN vet. I agree that our public schools do a poor job of teaching history. I disagree with your sweeping generalization of younger attorneys analytical skills. Age does nessarily lead to wisdom. For instance there are lots of older folks in Congress. We are not a culture that worships our ancestors. We are a country that sanctioned genocide, slavery, Jim Crow, coerced confessions and sex discrimination. While it is important to know history to avoid past mistakes we don't need to worship it. Our government is not working. Simply describing it as socialist adds nothing to the discussion. @NL Obama carried Michigan 54% to 44% in 2012. Had we apportioned votes according to Congressional district as advocated by our Republican legislature the vote would have gone to Romney 9 to 7. Not that a winner take all system is the best system, but when the districts are rigged to favor one party or the other it is just one more demonstration that our "American experiment" is not working.

By Redwood on 2013 05 19, 7:00 pm CDT

@80 All you have in your arsenal is ad hominem, personal attacks, Andy. That is the opposite, by the way, of the type of very polite, two (or more) sided discussions that take place at Federalist Society events.

By Yankee on 2013 05 19, 7:09 pm CDT

Anonymouus @80: I am not missing anything. You keep saying I am wrong, but you have written absolutely nothing in terms of substance to back that up -- no contrary recitation of historical fact, no discusion of govermental structure, no ecoomic or political theory, nothing except an incorrect definition of socialism. You say I cherry picked from history and was biased, but you did not say how and you did not give one different historical fact. I in effect challenged you to argue substance, but you did not take up the challenge. All you say, then, is that I'm wrong, that you are just as educated as me and that I need to examine how I interact with people. Excuse me, the real problem is that you need to re-think your positions because on an intelllectual basis, you failed to defend those positions here.

Yankee @82: No, I am not answering with ad hominem. Examine the posts I made at @ 56 and 58. What happened in response to those posts was not a coherent statement of another side to the discussion, but just strident statements that I was wrong with no rational argument backing it up. Yes, I lost patience with that, but faulting today's educational system is not really ad hominem attack.

By Phil Byler on 2013 05 19, 8:30 pm CDT

@76 - Your response is very telling. It amounts to "I don't care what the evidence is, I will continue to use a term that simply does not apply because I feel like it."

As far as how political authority is exercised, please see my post above @74 responding to Neil's point about gerrymandering. In my state, more than half of legislative seats are not filled by a competitive (i.e. contested by both parties) election. There is a lot to be said about the wisdom of the Founding Fathers, but focusing on an idealized past while ignoring real institutional threats to our form of representative government is pointless.

By NoleLaw on 2013 05 19, 8:46 pm CDT

@83 Phil: I was not referring to you when I referenced an "ad hominem" attack. I regret that you misunderstood my post.

And, yes, I can understand your loss of patience under the circumstances.

By Yankee on 2013 05 20, 12:43 am CDT

Let he who hath understanding reckon what Yankee and Phil Byler advocate, for that is the right path for us all. Muuuaaahahahahaha.